Uganda
Christopher Mbazira
Associate Professor, School of Law, Makerere University, Coordinator, Public
Interest Law Clinic, and Visiting Associate Professor, University of Witwatersrand,
South Africa
I. Origins and Historical Development of the Constitution
Before the advent of colonialism, Uganda did not exist as a single entity with defined
boundaries and a system of governance. Instead, the area now called Uganda was
inhabited by traditional societies characterised either as centralised kingdoms or as
decentralised chiefdoms. In 1894, after several contacts that British missionaries had
had with the Kingdom of Buganda, Uganda was formally declared a British
Protectorate. In 1902, the British government issued an Order in Council that in effect
imported to Uganda laws in force in the United Kingdom as at 2 August 1902. The
Order in Council also gave the representative of the Crown, designated as the
Commissioner, the power to make ordinances for the administration of justice,
revenue collection, and generally for the peace, order, and good government of all
persons in Uganda. In 1920 another Order in Council was promulgated that
established a Legislative Council (LEGCO), defining its membership of seven to
include the Governor, the Chief Secretary, the Attorney General, the Treasury, the
Principal Medical Officer, and two others. The Order in Council allowed the LEGCO,
under the stewardship of the Governor, to make ordinances for the governance of the
Protectorate. In later years, the composition of the LEGCO was expanded to include
non-Europeans, beginning with Indians, and in 1945 Africans too joined the Council.
In 1958, the first direct elections to the LEGCO were held. By this time, when
pressure for independence was at its peak, it became clear that the Protectorate would
be granted independence and allowed to establish self-rule.
As was done for all colonies being prepared for independence, a constitutional
conference for Uganda was convened in Lancaster in the United Kingdom, at which
Uganda’s Independence Constitution was born, in time for independence on 9
October 1962. Faced with an artificially amalgamated nation, having been pieced
together from several kingdoms and chiefdoms with different backgrounds and
cultures, the 1962 Constitution adopted a federal and semi-federal approach. The
President, who was constituted as the Head of State, was to be elected by the National
Assembly from among the rulers of the federal states and the constitutional rulers of
the districts. 1 Although the Constitution vested executive power in the President, 2 it
also limited this power in a number of ways, the most obvious being the creation of
the office of Prime Minister. The powers vested in the President to appoint the Prime
Minister were largely ceremonial; the President was obliged to appoint as Prime
Minister the leader of the political party with the majority membership in the National
1
2
1962 Constitution, Article 36(1).
1962 Constitution, Article 61(1).
Assembly. 3 The Prime Minister could only be removed by the President after a vote
of no confidence in the government was passed by the National Assembly. The
Cabinet was to be constituted by the Prime Minister, together with other ministers
appointed by the President, but on the advice of the Prime Minister. 4 The first Prime
Minister was Milton Obote, who received the instruments of independence from the
British government on behalf of Uganda.
One of the issues which caused tension in the run up to independence was the position
of Buganda in independent Uganda. The Buganda Kingdom, which was one of the
most powerful kingdoms in the region, had been used by the British colonialists to
extend colonial rule to the rest of the region. The Protectorate, later named Uganda,
had indeed been built around Buganda as the centre of colonial administration. For
this reason, the people of Buganda and their King perceived Buganda as superior to
the rest of Uganda and were willing to be amalgamated into Uganda only if Buganda
was conferred with special status. 5 This explains why Buganda was accorded special
status in the Independence Constitution. Indeed, when it came to the election of the
President, the politics of the day dictated that the Kabaka, the King of Buganda, be
elected President; otherwise Buganda, where the seat of government was located,
would not have accepted a President from another region. As a result, the position of
Buganda and its monarchical institutions was central to the future relationship
between the central government, other regions of Uganda, and Buganda. 6
A. The 1966 crisis and the birth of the Republican Constitution
Amidst these political events, the army started gaining prominence in Uganda. Having
put in an excellent performance in the Congo under the command of Idi Amin against
the Katangan rebels, the army’s profile had improved. It soon became clear to the
political actors that success against their opponents would depend on the relationship
they enjoyed with the army. Indeed, when a political dispute emerged between Obote,
on the one hand, and the King of Buganda and political actors in the government on
the other, Obote acted swiftly by arresting five Cabinet ministers and putting Idi Amin
in control of the army. To Obote, the solution for a stable united Uganda was the
abolition of kingdoms, including Buganda, and the establishment of a unitary state.
On 22 February 1966, Obote took over the reins of government power, arguing that
this move was ‘in the interest of national unity and public security and tranquillity’. 7
Two days later, Obote suspended the 1962 Constitution.
On 15 April 1966, Obote introduced into Parliament the 1966 ‘Pigeon Hole
Constitution’, which was so described because it was never debated; members of the
National Assembly were advised they would find the draft Constitution in their
pigeon hole, to be adopted the same day. Buganda rose up to oppose the political
developments, reviving its secession demands and calling upon the government to
3
1962 Constitution, Article 62(3).
1962 Constitution, Article 62(10).
5
Phares Mutibwa, Uganda since Independence: A Story of Unfulfilled Hopes (Fountain Publishers Ltd,
Kampala, 1992) 11.
6
Mutibwa, n5, at 23.
7
Mutibwa, n5, at 39.
4
2
vacate Buganda’s territory. The central government interpreted this as rebellion,
which led to the military raid, under the command of Idi Amin, of the Lubiri, the
Kabaka’s palace, forcing the King to flee into exile. The 1966 Interim Constitution
changed the manner of electing the President, by designating the leader of the
majority party in Parliament as the President. 8
On 8 September 1967, the Interim Constitution was replaced by the Republican
Constitution, which declared Uganda a Republic. The Constitution declared that ‘[t]he
institution of King or Ruler of a Kingdom or Constitutional Head of a District, by
whatever name called, existing immediately before the commencement of this
Constitution under the law then in force, is hereby abolished’. 9 All executive powers
were centralised and vested in the President, who was to be elected by adult suffrage.
The legislature, too, was to be elected.
Although the 1967 Constitution retained the multi-party political system as had been
entrenched in the 1962 Constitution, the practice was quite different. The period from
1967 to 1971 was used by Obote to build a one-party state, with the Uganda People’s
Congress (UPC) at the helm of state power. A good number of opposition politicians
were either imprisoned on flimsy politically-motivated charges or forced into exile,
while others were either bribed or threatened into abandoning their parties to join the
UPC.
B. The Northern question and its impact
One of the effects of colonialism, and a factor which has had an impact on
constitutionalism in Uganda, is the Northern question. The colonial government
deliberately marginalised northern Uganda, concentrating its socio-economic
development in the southern parts of the country. 10 The Northerners, seen by the
colonial state as physically strong and martial, were reserved for the provision of
labour, especially on farms in the south. They were also recruited in massive numbers
by the army.
At independence, the army was dominated by Northerners, mainly the Langi and
Acholi. This made it possible for politicians from northern Uganda, including Milton
Obote, to manipulate the army for their own political ends. However there was infighting between the different ethnic groups, including the Langi. Obote started
encouraging these differences to build his hold on the army by, among other actions,
side-lining other ethnic groups in favour of his Langi tribesmen to the detriment of the
Acholi and the Kakwa, who were Amin’s tribe-mates. Despite the differences
described above, what resulted was a strong-hold on the army by Northerners, who
considered this to be their institution. This happened at a time when the army had
entered the political arena as an important player, having been used by Obote to
overthrow the Constitution, which allowed him to consolidate his power.
8
For changes introduced by the 1966 Constitution, see HF Morris, ‘The Ugandan Constitution, April
1966’ (1966) 10 Journal of African Law 112–116.
9
1967 Constitution, Article 118(1).
10
See AG Ginywera-Pinchw, ‘Is there a “Northern Question”’?, in Kumar Rupesinghe (ed), Conflict
Resolution in Uganda (International Peace Research Institute, Oslo, James Currey, London, and
Ohio University Press, Athens, 1989) 44–64.
3
It was this state of affairs which paved the way for Idi Amin, who had exploited these
ethnic tensions, to stage a coup in 1971. He thought the ethnic tensions would be
defused if he massacred all Langi soldiers. This he did immediately after taking
power.
C. The dictatorship of Idi Amin (1971 – 1979) and his overthrow
On 25 January 1971, Idi Amin took advantage of the absence of Obote, who was on a
state visit to Singapore, to stage a coup d’état. Amin immediately dismissed
Parliament, suspended the Constitution, and began his rule by decrees passed by the
Military Council, which he chaired. The military assumed all powers, including
judicial powers exercised through the military tribunals, which exercised jurisdiction
over civilians for such civilian offences as smuggling goods or engaging in political
activity. Amin then started his reign of terror, brutally murdering all who opposed
him, and hordes of politicians and professionals fled into exile. 11
The overthrow of Idi Amin in 1979 by Ugandan exiles, with the support of Tanzania,
was expected to restore democracy and constitutional rule. Unfortunately, this was not
the case. The problem that immediately surfaced was the presence of many liberation
groups that had different ideologies and plans for the country. 12 The transitional
government formed to organise and return Uganda to democracy was characterised by
intrigue between the different factions, with the UPC-led faction ‘stealing the show’
and dominating the scene. Multi-party elections organised in 1980 turned out to make
a mockery of democracy. The elections were marred by irregularities and
malpractices. The Military Commission, which was controlled by the UPC, usurped
the powers of the Electoral Commission. To reverse what many believed to be a
victory for the Democratic Party (DP), the Military Commission hurriedly pushed
through a law which prohibited presiding officials from announcing the results. Later,
in what were believed to be ‘doctored’ results, the Commission announced that
Obote’s UPC had won.
The rigged election was justification for Yoweri Kaguta Museveni and twenty-six of
his colleagues to take up arms and work towards the forceful overthrow of Obote. The
Obote regime (1980 to 1985) was characterised by draconian rule, with the army
terrorising civilians. A coup d’état, precipitated by ethnic intrigue in the army, saw
Tito Okello Luwta, an Acholi army official, overthrow Obote, which further
weakened the government and created the perfect opportunity for Museveni’s
National Resistance Army (NRA) to overthrow the government on 26 January 1986,
thereby establishing the government of the National Resistance Movement (NRM).
D. Uganda under the NRM government
11
12
See Henry Kyemba, A State of Blood: The Inside Story of Idi Amin (Grosset & Danlap, 1977).
Mutibwa, n5 at 125.
4
When the NRM took over government, it declared that its ascendency to power was
not ‘a mere change of guards’, but a ‘fundamental change’. The face of government
and the army changed, becoming more friendly and non-repressive. The new
government announced that its activities would be guided by the Ten Point
Programme, a catalogue of ten guiding principles conceived during the armed
struggle, as the basis for reform. The ten points comprised (i) democracy; (ii) security;
(iii) the consolidation of national security and the elimination of all forms of
sectarianism; (iv) defending and consolidating national independence; (v) building an
independent, integrated, and self-sustaining national economy; (vi) the restoration and
improvement of social services and the rehabilitation of war-ravaged areas; (vii) the
elimination of corruption and the misuse of power; (viii) redressing errors that had
resulted in the dislocation of sections of the population, and improvement of others;
(ix) co-operation with other African countries in defending the human and democratic
rights of brothers in other parts of Africa; and (x) following an economic strategy of a
mixed economy.
Although the NRM government began its governance under the 1967 Constitution, it
made a number of changes of constitutional significance. Although the Constitution
made provision for such constitutional institutions as Parliament and a Cabinet, in its
first days the NRM used its military structures, including the High Command and the
Military Council, as the political decision-making bodies. 13 Also of significance was
the regulation of multi-party democracy by the suspension of the activities of political
parties and, in its place, the adoption of the ‘Movement’ or ‘No-party’ system. 14 The
NRM argued that political parties were divisive and partly responsible for the
country’s historical woes. 15 Elections were also suspended—the country had to wait
for ten years before holding a presidential election, in what the NRM described as a
period of transition.
One of the developments marking a milestone in constitutional terms was the 1989
appointment of the Uganda Constitutional Commission (widely referred to by the
name of its Chairperson as the ‘Odoki Commission’). The mandate of the
Commission was to traverse all parts of the country and collect people’s views on the
content of a new constitution to take the country forward. 16 Later, the Report of the
Commission was debated by an elected Constitutional Assembly, which in October
1995 adopted the 1995 Constitution, thereby repealing the 1967 Constitution.
Amidst these developments, the ‘Northern question’ manifested. Some soldiers of the
ousted government retreated to northern Uganda, where they exploited the northsouth divide to brainwash some Northerners into rebellion. This was how the Lord’s
Resistance Army (LRA), led by Joseph Kony, was born.
13
Dan M Mudola, D M Mudoola, ‘Institutional Building: The Case of the NRM and the Military in
Uganda 1986–9’, in H Hansen & M Twadde (eds), Changing Uganda: The Dilemma of Structural
Adjustment and Revolutionary Change (Eastern African Studies, James Currey Ltd, 1991) 230, 231.
14
See Giovanne Carbone, No-Party Democracy? Ugandan Politics in Comparative Perspective (Lynne
Rienner Publishers, Boulder, 2008).
15
George Kirya, ‘The “No Party” or “Movement”: Democracy in Uganda’ (1998) 60 The Review 79–
101.
16
See Benjamin Odoki, The Search for a National Consensus: The Making of the 1995 Uganda
Constitution (Fountain Publishers, Kampala, 2005).
5
The LRA terrorised northern Uganda in the 20 year civil war by techniques that
involved attacks on civilians and abduction as a mechanism of recruitment. 17
However, by 2005 the LRA was weakening, as the political situation in Southern
Sudan stabilised. This led to the loss of the LRA’s hiding places and the support of
the Sudan Khartoum-based government. As a result of this, combined with the
indictment by the International Criminal Court of its top commanders, the LRA was
forced to a negotiating table. 18 Although no final peace deal was signed, Kony and his
men retreated to the Democratic Republic of the Congo and the Central African
Republic, where they have continued to commit atrocities.
II.
Fundamental Principles of the Constitution
A.
National Objectives and Directive Principles of State Policy
Like many constitutions drafted by African countries in the 1990s, the Ugandan
Constitution contains ‘National Objectives and Directive Principles of State Policy’
(‘National Objectives’). The National Objectives, which appear immediately after the
Preamble, deal with a number of subjects and define the objectives which Uganda is
supposed to pursue. The manner in which the objectives are to be implemented is
spelt out in Object I, which provides as follows:
I.
Implementation of objectives
(i)
The following objectives shall guide all organs and agencies of the State, all
citizens, organisations and other bodies and persons in applying or interpreting
the Constitution or any other law and in taking and implementing any policy
decisions for the establishment and promotion of a just, free and democratic
society.
For a long time, questions were raised regarding the legal nature and status of these
Objectives and whether or not they are justiciable. The courts in some cases attempted
to define the status of the principles. In Salvatori Abuki & Anor v Attorney General
(Abuki case), 19 Justice Egonda Ntende gave meaning to the right to life as including
the right to a livelihood, as referred to in the National Objectives. The judge relied on
Objective XIV, which compels the state to endeavour to fulfil the fundamental rights
of all Ugandans to social justice and economic development.
B.
17
18
19
Constitutional values
See Lui Institute for Global Issues and Human Rights & Peace Centre, The Hidden War, The
Forgotten People: War in Acholiland and it’s Ramifications for Peace and Security in Uganda
(2003).
See Christopher Mbazira, ‘Prosecuting International Crimes Committed by the Lord’s Resistance
Army in Uganda’, in Chacha Murungu & Japhet Biegon (eds), Prosecuting International Crimes in
Africa (Pretoria University Law Press, 2011) 197.
Constitutional
Petition
No
2
of
1997,
[1997]
UGCC
5
[http://www.ulii.org/ug/judgment/constitutional-court/1997/5] (accessed 20 April 2013).
6
The Constitution does not have a specific provision which explicitly spells out the
values upon which Ugandan society is based. The closest the Constitution comes to an
explicit expression of the values is in the Preamble , in which ‘The People of Uganda’
commit ‘to building a better future by establishing a socioeconomic and political
order through a popular and durable national Constitution based on the principles of
unity, peace, equality, democracy, freedom, social justice and progress’.
Constitutional values can also implicitly be picked from various parts of the
Constitution, including the National Objectives, which commit the state to being
based on democratic principles, 20 the promotion of balanced and equitable
development, 21 the recognition of the role of women in society, 22 the recognition of
the family as the natural and basic unit of society, 23 and respect for cultural and
customary values which are consistent with fundamental rights and freedoms, human
dignity, democracy, and the Constitution,24 among others. Article 7 provides that the
state shall not adopt a state religion, while Article 126(1) states that judicial power is
derived from the people and shall be exercised in the name of the people and in
conformity with the law and with the values, norms, and aspirations of the people.
Outside the Constitution, the country’s constitutional values could also be deduced
from the jurisprudence of the courts, and particularly from constitutional law
jurisprudence. In interpreting the Constitution, and particularly the Bill of Rights, the
courts have in some cases been guided by what have been referred to as
‘constitutional values’. However, some of the values indicated in the jurisprudence
have been informed by foreign case law, which raises questions as to whether these
are purely Ugandan values. It should be noted, though, and as will be illustrated later,
that the courts have been guided in this regard by, among others, Article 43, which
prescribes the general limitation clause and alludes to ‘a free and democratic society’.
It was in the process of interpreting this provision that the courts have alluded to
values found in foreign case law. In the Abuki case, for instance, Justice Tabaro, while
relying on the South African case of S v Makwanye, 25 referred to the African value of
ubuntu, holding that this value embodies humanness, social justice, and fairness, and
permeates fundamental human rights. 26 The Constitutional Court has also alluded to
equality as a core value of the Constitution. 27 In the case of Paul Kafeero and Another
v Electoral Commission and Attorney General, 28 the Court relied on the Canadian
Supreme Court decision in The Queen v Oakes 29 to find that commitment to social
justice and equality, accommodation of a wide variety of beliefs, and respect for
cultural and group identity were part of Uganda’s constitutional values. In Charles
20
National Objective II(i).
National Objective XII.
22
National Objective XV.
23
National Objective XIX
24
National Objective XXIV.
25
1995 (3) SA 391 (CC)
26
At page 29 of his judgment.
27
Uganda Association of Women Lawyers and Others v Attorney General Constitutional Petition No 2
of 2003 [2004] UGCC 1.
28
Constitutional
Petition
No
22
of
2006
[2008]
UGCC
3
[http://www.ulii.org/ug/judgment/constitutional-court/2008/3] (accessed on 2 March 2013].
29
[1987] (Const) 477 at 498–9.
21
7
Onyango Obbo and Anor v Attorney General, 30 the Supreme Court alluded to
democracy as a fundamental constitutional value and principle in Uganda.
C.
Constitutional principles
As with the constitutions of several other countries, the Constitution of Uganda is
defined by a number of principles which can be deduced from its provisions. These
include the supremacy of the Constitution and the constitutional state; separation of
powers; democracy; and social justice. These principles can be derived from a reading
of the Constitution and the jurisprudence of the courts. In addition to the body of the
Constitution, some of the principles can be found in the National Objectives.
As regards the principle of supremacy of the Constitution and the constitutional state,
this is consistent with the country’s legal tradition since 1966, when the first
Republican Constitution was adopted. Article 2 of the 1995 Constitution proclaims
the supremacy of the Constitution. The provision states that the Constitution is the
supreme law of Uganda and shall have binding force on all authorities and persons
throughout Uganda. 31 It also provides that if any other law or any custom is
inconsistent with any provision of the Constitution, the Constitution shall prevail, and
that other law or custom shall to the extent of its inconsistency be void. This
supremacy clause is bolstered by Article 137(3), which gives the Constitutional Court
the power to declare that any law or thing done under the law, act, or omission is
inconsistent with the Constitution. This is a power which the Court has exercised in a
number of cases. In Uganda Association of Women Lawyers and Ors v Attorney
General (Uganda Women Lawyer’s Case), 32 the Court declared void provisions of the
Divorce Act which created different grounds for divorce for men and women, and in
effect unfairly discriminated against women on the basis of sex. In Muwanga Kivumbi
v Attorney General, 33 the Court declared void a provision of the Police Act which
required protestors to seek the written approval of the chief of police before
exercising their freedom of assembly as constitutionally guaranteed. In Foundation
for Human Rights Initiative v Attorney General, 34 the Court declared null and void
various provisions of the criminal procedure laws which stifled enjoyment of the right
to bail.
The principle of separation of powers comes across in several provisions of the
Constitution. The Constitution creates three organs of the state—the legislature, the
executive, and the judiciary—and defines the powers, mandate, and constitutional
limits of each of the organs, with appropriate checks and balances. A more detailed
discussion below will illustrate the breadth of the power, the nature of the mandate of
each organ, and the relevant checks and balances.
30
Constitutional Appeal No 2 of 2002, [2004] UGCC 1 [http://www.ulii.org/ug/judgment/supremecourt/2004/1] (accessed on 20 May 2013).
31
Article 2(1).
32
Above, n27.
33
Constitutional
Petition
No
9
of
2005,
[2008]
4
UGCC
[http://www.ulii.org/ug/judgment/constitutional-court/2008/4] (accessed on 20 February 2013).
34
Constitutional
Petition
No
20
of
2006,
[2008]
UGCC
1
[http://www.ulii.org/ug/judgment/constitutional-court/2008/1] (accessed on 2 May 2013).
8
III. Fundamental Rights Protection
A. The introduction of fundamental rights
Uganda has had a Bill of Rights in its Constitution since 1962, when it gained
independence and promulgated the Independence Federal Constitution. For the first
time after years of colonial exploitation and oppression, Ugandans in 1962 gained
constitutionally guaranteed fundamental rights and freedoms. However, it should be
noted that, as probably dictated by the conceptions of human rights at the time, the
Bill of Rights had its own limitations. First, instead of opening with an assertion of
the inherent nature of the rights, the Bill began with a clear caution that the rights
were not absolute and that the rights would be enjoyed subject to the rights of others
and the public interest. 35 In addition to this, the substantive provisions defining the
rights were riddled with a number of limitations. Furthermore, the Constitution
guaranteed only civil and political rights, to the exclusion of economic, social, and
cultural rights.
Although the 1962 Constitution made provision for the enforcement of the Bill of
Rights, it restricted the right to petition the court to those persons who would allege
violation of the rights in relation to themselves. Thus only those who had suffered or
were likely to suffer damage would have locus before the High Court. The subsequent
1966 and 1967 Constitutions carried on the same approach. These Constitutions also
limited their scope of coverage to the classic civil and political rights, to the exclusion
of the economic, social, and cultural rights.
In comparison, the 1995 Constitution has a more progressive Bill of Rights, and one
which creates a number of enforcement procedures. The Constitution guarantees a
variety of rights, ranging from the traditional civil and political rights to rights of such
vulnerable groups as women, children, and persons with disabilities. The 1995
Constitution came after a long history of massive violations of human rights, which
characterised the leadership of regimes such as that of Idi Amin.
When the NRM government came to power in 1986, it instituted a Commission of
Inquiry into Violations of Human Rights. 36 The mandate of the Commission was to
inquire into all aspects of violations of human rights, breaches of the rule of law, and
excessive abuses of power committed against persons in Uganda by regimes in
government, their servants, agents, or agencies, as whatsoever called, during the
period from 9 October 1962 to 25 January 1986. This was in addition to finding
possible ways of preventing the recurrence of the aforesaid matters. 37 It was the work
of this Commission and the recommendations it made, together with those that
emerged from the Report of the Uganda Constitutional Commission, that influenced
the structure and content of the Bill of Rights.
35
Article 17.
See Commission of Inquiry Act, Legal Notice No 5 (16 May 1986) (Cap 56).
37
Id.
36
9
The Commission recognised human rights as the basis for human dignity,
constitutionalism and the rule of law, and development. It was on the basis of this that
a proposal was made for a comprehensive Bill of Rights, which the Commission
linked to an attempt by the people to provide both machinery and institutions for the
enforcement of human rights and the people at large with all the principles they need
to protect human rights, without any further doubt or excuse of ignorance.
Article 20(2) creates both vertical and horizontal obligations to respect, uphold, and
promote the rights in the Bill of Rights:
20. Fundamental and other human rights and freedoms
(1) ...
(2) The rights and freedoms of individuals and groups enshrined in
this Chapter shall be respected, upheld and promoted by all organs and
agencies of Government and by all persons
B. The spectrum of rights
Compared to the 1962, 1966, and 1967 Constitutions, which, as indicated above,
provided mainly for traditional civil and political rights, the 1995 Constitution has a
wider spectrum of rights and, as also mentioned above, extends in a specific manner
protection to a number of vulnerable groups.
The rights of women are found in Article 33, which guarantees women the right to be
accorded full and equal dignity of the person with men. 38 The state is required to
provide the facilities and opportunities necessary to enhance the welfare of women to
enable them to realise their full potential and advancement. 39 The Article goes on to
guarantee women the right to equal treatment with men, which includes the right to
equal opportunities in political, economic, and social activities. 40 Also guaranteed is
the right to affirmative action for the purposes of redressing the imbalances created by
history, tradition, or custom. 41 Other provisions which guarantee the rights of women
include Article 31, dealing with ‘rights of the family’ and which among others
guarantees ‘equal rights at and in marriage, during marriage and at its dissolution’.42
The provision also guarantees both men and women the right to marry if they are
above the age of eighteen years and to found a family, and requires that marriage shall
be entered into with the free consent of the man and woman intending to marry.
Article 31(2) enjoins Parliament to make laws for the protection of the rights of
widows and widowers to inherit the property of their deceased spouses and to enjoy
parental rights over their children. Article 32(2) prohibits laws, cultures, customs, and
traditions which are against the dignity, welfare, or interest of women.
38
Article 33(1).
Article 33(2).
40
Article 33(4).
41
Article 33(5).
42
Article 31(b).
39
10
The Constitutional Court has adjudicated some cases seeking to enforce the rights of
women in Article 33, together with Article 21, which guarantees the right to equality
and prohibits discrimination on the basis of, among others, sex. This is in addition to
Article 31, which guarantees rights of the family. In the Uganda Women Lawyers
case, the petitioners contested provisions of the Divorce Act, 43 which discriminated
against women in various matters regarding divorce, including creating grounds of
divorce which disadvantaged women, in addition to differentiated procedures which
accorded men more rights. The Court nullified the impugned provisions, having found
them discriminatory and inconsistent with the Constitution in a number of respects.
Justice Mpagi-Bahigeine opined:
It is beyond dispute that no area of law impacts on more women with greater force
that Domestic Law. The Divorce Act (CAP 249) is, however, archaic in content ...
[i]ts substance is a colonial relic whereby the traditional patriarchal family elevated
the husband as the head of the family and relegated the woman to a subservient role,
of being a mere appendage of the husband, without separate legal existence.44
In Law & Advocacy for Women in Uganda v Attorney General (the Adultery case), 45
the Court was invited to annul the provisions of section 154 the Penal Code Act,
which prescribed the offence of adultery in a manner that criminalised sex by a
married man with another married woman not being his wife, but criminalised sex by
a woman with another man, irrespective of whether or not the man was married. The
Court was also invited to annul various provisions of the Penal Code Act which
promoted discrimination against women in matters of succession. Although the state
conceded the unconstitutionality of the adultery provision of the Penal Code Act, it
invited the Court to read the provision with necessary modifications to bring it into
conformity with the Constitution. The Court, however, declined to carry out such
modifications, arguing that its constitutional mandate is limited to declaring null and
void any unconstitutional provisions. It was on this basis that the Court annulled
section 154 of the Penal Code Act, together with a number of impugned provisions of
the Succession Act.
In Mifumi (U) Ltd & Ors v Attorney, 46 the petitioners challenged the customary
practice of paying bride price as a condition for a valid customary marriage, and the
refund of the same as a condition for annulling a customary marriage. The petitioners
argued that the practice was inconsistent with Article 31, which guarantees the right to
marry if both parties consent. It was also argued that payments of bride price degrade
women and equate them to goods in the market place, in addition to promoting
inequality in marriage. In rejecting some of the arguments, the Court held that the
practice of paying bride price is not in itself unconstitutional, and prospective married
couples have the option of entering into other forms of marriage which do not require
a payment of bride price. The Court also held that although arguments were made
with regard to the social ills of bride price, such as domestic abuse, the Court could
43
Cap 249, Laws of Uganda.
Judgment of Mpagi-Bahigeine, at 7.
45
Constitutional Petition No 13/05 & 05/06, [2007] 1 [http://www.ulii.org/ug/judgment/constitutionalcourt/2007/1] (accessed on 17 March 2013).
46
Constitutional
Petition
No
12
of
2007,
[2010]
UGCC
2
[http://www.ulii.org/ug/judgment/constitutional-court/2010/2] (accessed on 2 December 2012).
44
11
not state that such instances occur as a matter of course, or are definitively linked to a
bride price arrangement. In any case, there are varied and numerous causes of spousal
abuse. The only argument which the Court agreed with was the one concerning the
pre-requisite to refund the bride price on dissolution of the marriage. The Court
argued that the refund demeans and undermines the dignity of the woman.
The Constitution also protects a wide spectrum of traditional civil and political rights,
including such civil liberties as equality and non-discrimination, 47 life, 48 personal
liberty, 49 human dignity and protection from inhuman treatment, 50 protection from
slavery, forced labour, and servitude, 51 privacy, 52 and a fair hearing. 53 Other rights
include the freedoms of conscience, expression, movement, religion, assembly and
association, 54 and rights of the family. 55
Some of the rights mentioned above have been the subject of constitutional litigation
and have been dealt with in a number of judicial decisions. Cases implicating the right
to equality and the prohibition of discrimination have been dealt with above. In
addition to these cases, the courts have ruled on the right not be subjected to forced
labour. The Supreme Court held that a letter from the Minister of Defence declining
the resignation of a General from the army did not amount to forced labour, since the
procedures of resignation had not been followed. 56 In Attorney General v Susan
Kigula, 57 the Supreme Court ruled that provisions of the law imposing the death
penalty did not infringe the constitutional right to life. However, the Court found that
provisions imposing a mandatory death penalty were unconstitutional to the extent
that they took away the discretion of the Court and compromised its independence. In
Muwanga Kivumbi v Attorney General, 58 the Constitutional Court annulled provisions
of the Police Act which gave the Inspector General of Police unfettered discretion to
prohibit a public demonstration or assembly. The Court emphasized the importance to
a country of the freedoms of assembly, association, and expression. Similarly, in
Charles Onyango Obbo v Attorney General, 59 the Court annulled provisions of the
Penal Code Act which prescribed the offence of publishing false news. The provision
was found to be vague and imprecise and infringed the constitutional right to freedom
of expression. The Court held that the right to freedom of expression extends
protection even to those expressions which are perceived to be vague or false. In Dr
Sam Lyamoki v Attorney General, 60 provisions of the law which compelled all trade
unions to belong to a statutory federation of unions was annulled as unconstitutional
47
Article 21.
Article 22
49
Article 23.
50
Article 24.
51
Article 25.
52
Article 26
53
Article 27.
54
Article 29.
55
Article 31.
56
Attorney General v Major-General Tinyefuza (Tinyefuza case), Supreme Court Constitutional Appeal
No 1 of 1997.
57
Constitutional Appeal No 3 of 2006.
58
Above, n33.
59
Above, n30.
60
Constitutional
Appeal
No
8
of
2004,
[2005]
UGCC
2
[http://www.ulii.org/ug/judgment/constitutional-court/2005/6] (accessed on 7 December 2012).
48
12
to the extent that it in effect amounted to forced association. As regards the freedom
of religion, the Supreme Court, in the case of Sharon Dimanche v Attorney General
(Dimanche case), 61 upheld a decision of the Constitutional Court to the effect that the
practice of Makerere University arranging exams on weekends was a legitimate
limitation of the freedom of worship for students who professed to follow the Seventh
Day Adventist religious faith, the University being a secular institution and the
students having been admitted on those terms.
Unlike the civil and political rights, the economic, social, and cultural rights (ESCRs)
have not attracted many judicial decisions. In the first place, the justiciability of
ESCRs in the Constitution is limited; the rights are mainly protected as part of the
National Objectives. Nonetheless, there are elements of the rights in the Bill of Rights
in provisions which protect the right of all persons to education, 62 the protection of
the unique and maternal functions of women, 63 the rights of children to education and
not to be deprived of medical treatment, education, or any social and economic
benefit by reason of religion, 64 the protection of children from social and economic
exploitation,65 the right to culture and similar rights, 66 the right to a clean and healthy
environment, 67 and rights to satisfactory, safe, and healthy working conditions, equal
pay for equal work, and rest and reasonable working hours. 68
The constitutional jurisprudence impugning ESCRs has unfortunately not only been
scanty, but it is also incoherent. In the Abuki case, 69 the Constitutional Court, while
annulling provisions of the Witchcraft Act that allowed for the banishment from his or
her home of a convicted witch even after they had served a custodial sentence, found
that the provisions infringed a number of rights. The Court found the provision to
infringe upon the right to a livelihood, as part of the right to life, to the extent that the
banishment denied the convicts a home and access to a garden from which they
derived sustenance. In addition to the right to life, the Court relied on National
Objective XIV, which provides that
The state shall endeavor to fulfill the fundamental rights of all Uganda’s to
social justice and economic development and shall, in particular, ensure that
all Ugandans enjoy rights and opportunities and access to education, health
services, clean and safe water, work, decent shelter, adequate clothing, food,
security and pension and retirement benefits.
One would have expected the Court to build on the approach in the Abuki case in the
subsequent case, and to promote ESCRs. This is especially so after the introduction in
the Constitution of Article 8A(1), which provides as follows:
61
Constitutional Appeal No 2 of 2004, [2006] UGCC 10 [http://www.ulii.org/ug/judgment/supremecourt/2006/10] (accessed on 9 December 2012).
62
Article 30.
63
Article 33(3).
64
Article 34(2) and (3).
65
Article 34(4).
66
Article 37.
67
Article 39.
68
Article 40.
69
Above, n19.
13
Uganda shall be governed based on principles of national interest and
common good enshrined in the national objectives and directive principles of
state policy.
The Constitutional Court failed to develop the Abuki case approach when confronted
with a case which raised serious issues pertaining to the state of reproductive health in
the country. In the case of Centre for Health Human Rights & Development and Ors v
Attorney General, 70 the petitioners sought to enforce the right to the best attainable
standard of mental and physical health, and particularly reproductive health rights.
The petition arose out of the senseless death of expectant mothers at some health
facilities as a result of neglect by medical staff and the absence of medical supplies.
The two incidents used to challenge the widespread deaths involved the death of two
mothers who bled to death at public health facilities because of, among other reasons,
deliberate neglect by health workers at those facilities. In the petition, reliance was
made, among other claims, on the National Objectives and Article 33(3) of the
Constitution which, as indicated above, requires the state to protect the rights of
women ‘taking into account their unique status and natural maternal functions in
society’. After an inordinate delay, when the case came up for hearing the state raised
a preliminary objection to the effect that the Court did not have jurisdiction to inquire
into health policy matters, as these raised political questions. In upholding the
objection and dismissing the petition, the Constitutional Court held that the petition
raised political questions:
Much as it be may be true that government has not allocated enough
resources to the health sector and in particular the maternal health services,
this court is, with guidance from the above discussions reluctant to determine
the questions raised by this petition. The Executive has the political and legal
responsibility to determine, formulate and implement policies of government,
for inter alia, the good governance of Uganda. This duty is the preserve of the
Executive and no person or body has the power to determine, formulate and
implement these policies except the Executive.71
The case has been appealed to the Supreme Court and awaits the hearing of the
appeal.
It should also be noted that the Constitution is open-ended in the rights it protects.
Article 45 provides that the rights, duties, declarations, and guarantees relating to the
fundamental or other human rights and freedoms specifically mentioned in the Bill of
Rights shall not be regarded as excluding others not specifically mentioned.
Unfortunately, this provision has not been the subject of specific judicial
interpretation.
C. Application
70
71
Constitutional Petition No 16 of 2011 (unreported).
At p 25.
14
There are a number of provisions in the Constitution that deal with the application of
the Bill of Rights. In what is a prescription of the vertical and horizontal application
of the Bill of Rights, Article 20(2) provides that the rights and freedoms in the Bill of
Rights shall be respected, upheld, and promoted by all organs and agencies of
government and by all persons. The beneficiaries of the rights are various and differ
from provision to provision, yet most of the rights are intended for ‘every person’, in
some cases in a specific context, such as when faced with arrest, when detained, or
when facing trial.
The specific groups guaranteed rights in specific provisions include women (Articles
31 and 33), children (Article 34), persons with disabilities (Article 35), and minorities
(Article 36).
D. Limitation and interpretation
In line with international practice, the rights in the Bill of Rights are not absolute but
are limited in a number of ways. The Bill of Rights has a limitation clause contained
in Article 43(1), which provides that in the enjoyment of the rights and freedoms, no
person shall prejudice the fundamental or other rights and freedoms of others or the
public interest. Article 43(2) states that the public interest shall not permit political
persecution and detention without trial, and that there shall not be any limitation of
the enjoyment of the rights and freedoms beyond what is acceptable in a free and
democratic society or what is provided for in the Constitution.
The approach which the courts have adopted in applying the limitation clause are
equivalent to the two-stage approach applied by the Canadian courts when giving
meaning to the rights in the Canadian Charter. Both the Constitutional Court and the
Supreme Court have given meaning to the limitation clause, in the first place, by
establishing whether or not the petitioner enjoyed a right which has been infringed,
followed by a determination of whether the ‘infringement’ amounts to a restriction
within the provisions of the limitation provision. In the Abuki case, Justice Egonda
held that the proper approach would be first to test the law complained of against the
substantive provisions of the Constitution that protect the right alleged to have been
infringed. According to Justice Egonda, if on the face of it the law complained of
infringes the substantive right or freedom, the Court would then examine any
limitation set by the Constitution or any other law and determine the extent of the
limitation permitted by the Constitution. 72
In the Dimanche case, the Supreme Court adopted the same approach, holding that it
is always necessary to determine whether the legislative objective is sufficiently
important to justify hurting a fundamental right. The Court in this regard held that it
must be established that the impugned action has an objective of expressing a
substantial concern of society in a free and democratic society. According to the
Court, in doing this the courts must strike a balance between the interest of freedom
and the social interest and ensure that rights are not suppressed unless there are
pressing community interests that are likely to be endangered. The Court also alluded
to considerations which must guide the court in determining the proportionality
described above: (1) the nature of the right which is limited; (2) the importance of the
72
Abuki case, n19, at p 40.
15
right in an open and democratic society, based on freedom and equality; (3) the extent
of the limitation; (4) the efficacy of the limitation; and (5) whether the desired ends
could reasonably be achieved through other less damaging means.
In applying the two-stage approach, the Constitutional Court has alluded to the burden
of proof on the applicant and that on the state. According to Justice Egonda:
Once a petitioner establishes that his constitutional right been infringed, the burden
to answer the above question shifts to those asserting that the exclusion order
protects the fundamental rights and freedoms of other people or the public interest
and that it is acceptable and demonstrably justifiable in a free and democratic
society. 73
As regards interpretation, the courts have adopted the approach that the Constitution
is a special instrument which requires a special approach to its interpretation
compared to ordinary pieces of legislation. In the Tinyefuza case, one of the first
constitutional cases under the 1995 Constitution, Justice Kanyeihamba of the
Supreme Court adopted reasoning in comparative case law to the effect that the task
of expounding a constitution is crucially different from that of constructing a statute,
as a statute defines present rights and obligations and can easily be enacted or
repealed. In contrast, a constitution is drafted with an eye to the future and cannot
easily be amended or repealed, and should therefore be capable of development and
growth. 74 The judge added that it is a recognised principle that in interpretation, the
constitution must be given a generous and purposive construction. The judge,
however, cautioned that this does not mean that the true text of the constitution should
be considered irrelevant.
The courts have also endorsed the contextual approach as relevant in interpreting a
constitution. In Hon Zachary Olum & Anor v Attorney General, 75 the court considered
the chequered and repressive history of the country to be relevant. In the Abuki case
the court construed Article 24, which prohibits torture, by making reference, among
others, to the history of torture under dictatorial regimes in Uganda. The provision
was also understood in the context of Article 44, which prohibits derogation from
freedom from torture.
IV. Separation of Powers
A. The executive and the legislature
There is no provision in the Constitution that expressly prescribes the doctrine of
separation of powers as one of the doctrines which should guide the organisation of
the state. However, it is clear from the provisions of the Constitution that the
organisation of the organs of the state and how they relate to each other has been
guided by the doctrine, with appropriate checks and balances. The mandate and
powers of the executive (Chapter seven) and the legislature (Chapter six) are
73
Abuki case, n19, at 43.
Tinyefuza case, n56, Kanyeihamba judgment, at 7.
75
Constitutional Petition No 6 of 1999.
74
16
adequately defined, with areas of interaction and appropriate checks and balances
indicated.
B. The executive
The Constitution vests executive powers in the President, who is also the Head of
State, Head of Government, and Commander-in-chief of the armed forces (Article
98(1)). In exercising his executive powers, the President is required to follow the
Constitution and is obliged to maintain the Constitution and all laws in force:
It shall be the duty of the President to abide by, uphold and safeguard this
Constitution and the laws of Uganda and to promote the welfare of the
citizens and protect the territorial integrity of Uganda.76
Uganda follows a multi-party system based on the first-past-the-post electoral system,
which allows for individuals to contest the presidency either through their political
parties or as independents. The election of the President is by universal adult suffrage
through secret ballot (Article 103(1)). Until 2005, Article 105 of the Constitution
prescribed a maximum of two terms of five years each as the tenure of office for the
President. However, the provision was controversially amended in 2005, which saw
the lifting of the term limits in a process which was characterised by political
manoeuvring and the outright bribery of Parliament.
The executive power is exercised by the President together with the Cabinet, which
consists of the President, the Vice President, the Prime Minister, and such ministers as
may appear to the President to be reasonably necessary for the efficient running of the
state. 77 The functions of the Cabinet are described as the determination, formulation,
and implementation of the ‘Policy of Government’ (Article 111(2)).
There are a number of checks and balances on the executive as prescribed by the
Constitution. In the first place, as indicated above, the President is expected to execute
his duties in accordance with the Constitution and has an obligation to uphold the
same. In relation to the Cabinet, the Constitution recognises the principles of
individual accountability and collective responsibility. It is provided that ministers
shall individually be accountable to the President for the administration of their
ministries and shall collectively be responsible for decisions made by the Cabinet
(Article 117). Nonetheless, ministers still individually remain accountable for their
decisions before Parliament, which among others has the power to censure ministers
guilty of abuse of office, misconduct or misbehaviour, mismanagement, or
incompetence (Article 118(1)). Parliament also has powers to remove the President
from office on the basis of the grounds stipulated in the Constitution, which include
abuse of office or violation of the oath of allegiance, misconduct, or physical or
mental incapacity (Article 107(1)). The process of removal of the President is
elaborate, and starts with a notice signed by not less than one-third of all members of
Parliament, followed by the appointment of a tribunal by the Chief Justice, which then
reports its findings to Parliament. Through its committees, Parliament is empowered
to check the ministers, who may be called upon by any committee either to submit
76
77
Article 99(3).
Article 111(1).
17
memoranda or to appear and give evidence on any matter as required by Parliament
(Article 90(3)(a)).
C. Parliament
Legislative powers in Uganda are vested in Parliament, which is composed of
members directly elected to represent constituencies; one woman representative for
every district; the vice-president and ministers; and such members who represent
interest groups such as the army, youth, workers, and persons with disabilities. 78
Although the legislative power generally vests in Parliament, the executive has
powers to initiate bills and bring the same for debate in Parliament. When a Bill is
passed by Parliament, it only becomes law after being assented to by the President,
who must do so within 30 days after the Bill is sent to him or her, unless he or she has
reservations, which he or she must bring to the attention of Parliament (Article 91(3)).
The President can also notify the Speaker that he or she declines to assent to a Bill. It
should be noted that since the promulgation of the 1995 Constitution, there has not
been any incident where the President has refused to assent to a bill. This could be
explained firstly by the fact that the ruling NRM government has enjoyed an
overwhelming majority in Parliament since it came to power. Secondly, the legislative
process is tightly controlled by the executive, and on many occasions Parliament has
served a ‘rubber stamping’ role.
Nonetheless, there are a small number of judicial decisions which have contested
actions of Parliament and on some occasions have invalidated laws passed by
Parliament, on the ground (among others) that prescribed constitutional procedures
for legislation have not been followed. In some of these cases, the courts have
emphasised the supremacy of the Constitution as opposed to the supremacy of
Parliament. In Paul Ssemogerere & Anor v Attorney General, 79 the Constitutional
Court held that it had powers to inquire into the internal procedures of Parliament. In
that case, Justice Kanyeihamba held that:
It is clear therefore that if Parliament is to claim and protect its powers and
internal procedures, it must act in accordance with Constitutional provisions,
which determine its composition and the manner in which it must perform its
functions. If it does not do so, then, any purported decision made outside
those Constitutional provisions in null and void and may not be claimed to be
an act of Parliament.
V.
Local Government/Decentralisation
Although Uganda has had a history of decentralisation, that system having been used
by the colonial state, the system has undergone a number of reforms. At
78
79
Article 78(1).
Constitutional Petition No 1 of 2000.
18
independence, in a bid to hold together a diverse and multi-cultural society, the
Independence Constitution created a hybrid federal/semi-federal system. However, as
already illustrated, this system did not endure for long and was abolished by the 1967
Constitution, which turned Uganda into a Republic with a highly centralised political
system. Reforms started in 1986, when the new government used locally elected
councils to manage some of the affairs of the state. In 1993, the Local Government
(Resistance Council) Statute 80 was adopted, devolving a number of powers to elected
local councils. A more formalised system of local governance came in 1995, with the
adoption of the Constitution.
The Constitution now declares in express terms that the state will be guided by the
principle of decentralisation and devolution of governmental functions and powers to
the people at appropriate levels where they can best manage and direct their own
affairs. 81 In terms of functions, the local governments exercise executive functions,
defined legislative powers, and, uniquely, some judicial powers. 82 The system of local
government is governed by a number of constitutional principles as prescribed by
Article 176(2), and which include devolution and transfer of powers, functions, and
responsibilities; decentralisation to apply to all levels of local government; full
realisation of democratic governance at all levels; a sound financial base for every
local government; local governments to be enabled to plan, initiate, and execute
policies and their jurisdictions; local governance to oversee the performance of civil
servants; and the system to be based on democratically elected councils.
In terms of the organisation of local government, the country is constitutionally
divided into districts, which are further divided into lower local government units
(Article 177). Every district is headed by an elected district chairperson, who is
elected by universal adult suffrage and serves as the political head of the district
(Article 183(1)). The chairperson presides over the district council, which is the
legislative, political, and executive decision-making organ of the district (Article 180)
and composed of elected councillors. Lower local governments are also presided over
by democratically elected chairpersons and operate through the lower local
government councils. Other structures of local government include the executive
committees, which are constituted by the chairpersons, vice chairpersons, and such
number of secretaries as the council may decide (Article 186). The Chief Executive
Office (CAO) is constituted as the accounting and finance officer of the district
(Article 188). 83 Each district is supposed to have a District Service Commission,
which has the power to appoint persons to hold offices in the service of the district
and may also remove such persons (Articles 198 to 200).
In what appears to have been designed to undermine the system of decentralisation
and entrench the firm grip of the President over local governments, the Constitution
creates the office of the Resident District Commission (RDC), appointed by the
President for each district (Article 203(1)). The functions of the RDC include
monitoring the implementation of central and local government services, acting as
chairpersons of the district security committees, and carrying out such other functions
80
Act No 15 of 1993.
National Objective II(iii).
82
See Local Council Courts Act, 2006.
83
See sections 63 and 64 of the Local Government Act, Chapter 243, Laws of Uganda.
81
19
as may be assigned by the President or prescribed by Parliament (Article 203(3)). In
practice, RDCs have on a number of occasions overstepped their powers, mainly
under the illusory perception that as representatives of the President in the district,
they are the presidents of the districts. 84
It should be noted that implementation of the system of decentralisation in Uganda
has come with successes and failures. The successes lie in the fact that the system has
been used to create democratic structures at the grassroots level through which people
can exercise their political rights. Failures of the system have included the
contradictions in the design of the local government system, which have left many
critical powers held by the central government, a shallow tax base, and the failure of
local governments to mobilise resources which they need to deliver services to the
grassroots people. 85 Gerrymandering practices and the populist politics of the ruling
party have also resulted in the rapid creation of districts without feasibility studies
having been carried out regarding their viability and preparation of resources and
infrastructure for their functioning, let alone establishing standard criteria for district
creation. 86
VI.
Constitutional Adjudication
A. The judiciary
The Constitution states that judicial power derives from the people and shall be
exercised by the judiciary in the name of the people and in conformity with the
values, norms, and aspirations of the people (Article 126(1)). The Constitution also
defines the principles which are supposed to guide the courts in adjudicating cases,
and these include the following: (a) justice shall be done to all, irrespective of their
social or economic status; (b) justice shall not be delayed; (c) adequate compensation
shall be awarded to victims of wrongs; (d) reconciliation between parties shall be
promoted; and (e) substantive justice shall be administered without undue regard to
technicalities (Article 126(2)).
The courts of judicature are organised in a hierarchal manner descending from the
most superior court: the Supreme Court, the Court of Appeal, the High Court, and
such subordinate courts as Parliament may by law establish (Article 129). The
Supreme Court is the highest and most superior court, with criminal and civil
appellate jurisdiction. The Court can also entertain appeals from the Constitutional
Court in constitutional matters (Article 132). The only instance in which the Supreme
84
See
for
instance,
Adjumani
District
Executive
wants
RDC
Sacked
[http://direct.ugandaradionetwork.com/a/story.php?s=21487] (accessed on 11 April 2013); Kasese
Councilors
Want
RDC
to
Apologise
on
Busongora
Issue
[http://ugandaradionetwork.com/a/story.php?s=43520] (accessed on 11 April 2013); and Uganda:
RDC Tells Police to Use Bullets On Demonstrators, The Monitor Newspaper (3 December 2011).
85
See Laura Nyirikindi, Economic and Social Rights, Service Delivery and Local Government in
Uganda, Human Rights & Peace Centre Working Paper No 13 (2007) 23.
86
See E Green, District Creation and Decentralisation in Uganda, Development Studies Institute,
London School of Economics, Working Paper Series No 2.
20
Court exercises original jurisdiction is in considering petitions challenging the results
of a presidential election (Article 104). Other than in this situation, the cases which
the Supreme Court considers come to it by way of appeal from the Court of Appeal.
The Court of Appeal also has jurisdiction to sit as a Constitutional Court when faced
with constitutional petitions filed under Article 137. This provision provides that any
question as to the interpretation of the Constitution shall be determined by the Court
of Appeal sitting as the Constitutional Court. Appeals in constitutional matters lie
from the Constitutional Court to the Supreme Court (Article 132(3)).
One of the subjects of controversy as regards the hierarchy of the courts has arisen
from the position of the military courts within this hierarchy. This is in addition to the
issue of whether or not the military courts have jurisdiction in criminal matters over
civilians. In the case of Uganda Law Society v Attorney General, 87 the Constitutional
Court had to decide, among other issues, whether or not the concurrent prosecution by
the High Court and the Court Martial of persons for offences arising from the same
facts was constitutional. This was in addition to the issue of whether or not it was
constitutional for the Court Martial to have jurisdiction over civilians who were not in
the employment of the army or who were voluntarily serving in the same, and
whether it was constitutional for the Court Martial to try offences such as terrorism.
The Court held that military courts are special types of courts and different from the
ordinary courts. According to the Court, the special courts exercise power over
specific matters, which is the trial of members of the armed forces who breach
military law. After reviewing the provisions of the Uganda Peoples Defence Force
Act, the Court concluded that although military courts had concurrent jurisdiction
with civil courts, they were different and belonged to a separate legal regime, that
they were not subordinate to the High Court, and that both courts had concurrent
jurisdiction and their decisions were both appealable to the Court of Appeal.
Nonetheless, the Court found that the concurrent prosecution of the accused who was
the subject of the petition was unconstitutional and contravened that person’s fair trail
rights, as they had been charged with the offences by the High Court in the first place.
Generally, the power to appoint judges of the superior courts, including the judges of
the High Court and the justices of the Court of Appeal and the Supreme Court, vests
in the President, who exercises the same on the advice of the Judicial Service
Commission (JSC). Article 147(3) gives the President the power to appoint the Chief
Justice, the Deputy Chief Justice, the Principal Judge, justices of the Court of Appeal,
justices of the Supreme Court, and court registrars, including the Chief Registrar.
Such power is, however, exercised on the advice of the JSC, which is also mandated
to make recommendations on the terms and conditions of service of judicial officers
(Article 147(1)(b)). The JSC also has powers to discipline judicial officers.
The jurisdictions of the various courts are prescribed in the Constitution. The High
Court has unlimited original jurisdiction and such appellate jurisdiction as is
prescribed by the law (Article 139). The Court of Appeal is unique, as it doubles as an
appellate court to entertain appeals from the High Court (Article 134(4)) and as the
Constitutional Court (Article 137(1)), the latter being constituted by five judges of the
87
Constitutional Petition No 18 of 2005.
21
Court of Appeal (Article 137(2)). Appeals in both ordinary cases and in constitutional
matters lie from the Court of Appeal to the Supreme Court (Article 132(3)).
Constitutional matters, including cases touching on the Bill of Rights, are brought
either under Article 50 or Article 137. Article 50 provides that any person who claims
that a fundamental or other right or freedom guaranteed under the Constitution has
been infringed or threatened, is entitled to apply to a competent court for redress,
which may include compensation. On its part, Article 137 allows any person who
claims that an Act of Parliament or anything done under the authority of any law or
any act or omission is inconsistent with the Constitution may approach the
Constitutional Court for a declaration to that effect. In its initial years, one of the
issues that both the Constitutional Court and the Court of Appeal had to contend with
was whether the Constitutional Court had powers to entertain matters brought under
Article 50. The courts adopted the position that the actions envisaged by Article 50
and those envisaged by Article 137 were of a different character. Actions under
Article 50 merely sought to enforce the right in the Bill of Rights and would be
brought by those who alleged that their rights had been infringed. In contrast, Article
137 was meant for those cases which required ‘interpretation’ of the Constitution, as
opposed to those seeking ‘enforcement’ under Article 50. On the basis of this, the
courts have concluded that the Constitutional Court does not have jurisdiction to
entertain Article 50 matters. 88 Nonetheless, the Constitution allows for constitutional
references to be made from the High Court to the Constitutional Court in those cases
where a question that requires constitutional interpretation arises (Article 137(5) and
(6)).
It should be noted that since its establishment, the Constitutional Court, backed by the
Supreme Court, has generally held itself out as a pragmatic court, committed to the
enforcement and protection of the Constitution. The Court has adopted an
interpretative approach which accords with trends in advanced jurisdiction by, for
instance, interpreting limitations restrictively, adopting the two-stage approach, and
employing the purposive and generous methods of constitutional interpretation. At the
same time, however, the Court, as indicated above, has been incoherent as regards the
enforcement of ESCRs. The Court has also not adequately developed and taken
advantage of its remedial powers and instead has narrowly construed its mandate to
be limited to making declarations of invalidity. The Court has declined to read down
provisions even when on some occasions it has been invited by the state to do so. 89
B. Interpretation
As indicated above, both the Constitutional Court and the Supreme Court have been
guided by special methods of interpreting the Constitution. In the Tinyefuza case, the
Constitutional Court indicated that a constitution ought to be given liberal
interpretation, unfettered by technicalities, because the language of the Constitution
does not change as society changes. According to the Court, the role of the courts
88
See Tinyefuza case, n56 and Ismail Serugo v Kampala City Council, Constitutional Petition No 14 of
1997.
89
See Adultery case, n45.
22
should be to expand the scope of a provision and not to extenuate it, and that
provisions touching on fundamental rights ought to be construed broadly and liberally
in favour of those on whom the rights have been conferred by the Constitution. In the
same case, the Supreme Court held that a constitution is not a ‘lifeless museum piece’
but one which requires life to be breathed into it. The Supreme Court here endorsed
the generous and purposive approach to interpretation, but at the same time cautioned
that this does not mean that the true text of the Constitution should in any way be
considered irrelevant to the interpretation of the Constitution.
VII. International Law and Regional Integration
The Constitution vests the power to enter into treaties, conventions, agreements, or
other arrangements between Uganda and any other country or between Uganda and
any international organization in the President or any person authorised by the
President (Article 123(1)). Parliament is, however, authorised to make laws to govern
the ratification of treaties or agreements (Article 123(2)). In 1998, Parliament
promulgated the Ratification of Treaties Act 90 as the law to provide for the procedure
of ratifying treaties. The Act divides the mandate to ratify treaties between Cabinet
and Parliament. Cabinet can ratify any treaty other than those that relate to armistice,
neutrality, or peace, or those in respect of which the Attorney General has certified in
writing that implementation in Uganda would require an amendment to the
Constitution. 91
Although the Constitution, in the National Objectives, states that the country’s foreign
policy shall be guided by the principle, among others, of respect for international law
and treaty obligations, there is nothing in the Constitution which describes the status
of international law. Even such principle laws as the Judicature Act, 92 which
prescribes the law applicable in Uganda, does not define international law as one of
the sources of law in Uganda. This could be explained by the country’s legal tradition
as a Commonwealth country and one which subscribes to the dualist doctrine. Indeed,
the Ratification of Treaties Act requires all treaties ratified by Cabinet to be laid
before Parliament, and although the purpose of this is not mentioned, this is
presumably for the purposes of domestication.
The approach of the courts on the status of international law in the domestic legal
order has been mixed, oscillating between outright rejection of undomesticated
international law, a perception of international law as a guide to interpretation, to
acceptance of international law as part of the Constitution.93 In the Tinyefuza case, the
Constitutional Court listed international law as one of the aids to interpretation of the
Constitution.94 In Uganda Law Society & Anor v Attorney General, 95 Justice
90
Ratification of Treaties Act, Chapter 204, Laws of Uganda, 2000 Edition.
Section 2, Ratification of Treaties Act.
92
Judicature Act, Chapter 13, Laws of Uganda, 2000 Edition.
93
Busingye Kabumba, ‘The Application of International Law in the Ugandan Judicial System: A
Critical Enquiry’, in Magnus Killander (ed), International Law and Domestic Human Rights
Litigation in Africa (Pretoria University Law Press, 2010) 83.
94
See Tinyefuza case, n56, decision of Justice Egonda-Ntende, at 18.
95
Constitutional Petition No 2 and 8 of 2002.
91
23
Twinomujuni of the Constitutional Court maintained that the African Charter on
Human and Peoples Rights was part and parcel of the Constitution. The judge went
further to underline the relevance of the Charter as not only being an aid in the
interpretation of the Constitution but as a source of rights not expressly provided for
under the Constitution. In Uganda v Tesimana Rosemary, 96 the High Court referred to
a decision of the Human Rights Committee made under the International Covenant on
Civil and Political Rights, reasoning that Uganda, having ratified that instrument, had
made the decisions of the Committee persuasive authority.
As regards regional integration, Uganda is one of the countries forming the East
African Community (EAC), which is a regional economic and political block
governed by the Treaty for the Establishment of the East African Community (1999).
This Treaty has been given the force of law in Uganda by virtue of the East African
Community Act of 2002, which also domesticates the Acts passed by the East African
Legislative Assembly (EALA). In the case of Testimony Motors Ltd & Ors v the
Commissioner Customs, Uganda Revenue Authority, 97 one of the issues the High
Court had to contend with was whether it had jurisdiction to render an interpretation
of the East African Customs Management Act (EACMA) (2004) in a manner that
would make its decisions bind all EAC countries. The EACMA is legislation passed
by EALA. The Court held that for all intents and purposes, the EACMA was a
creature of the EAC Treaty and was part of international law, and that its provisions
have to be applied uniformly across all member states. However, according to the
Court, its jurisdiction was confined to matters in Uganda and it could not extend its
jurisdiction to other countries.
VIII. Conclusion
Uganda has had a tumultuous and politically unstable history that has seen all kinds of
regimes, from outright dictatorial regimes to undemocratic and pseudo democracies.
Although the country has witnessed the progressive and steady development of its
constitutional law, constitutionalism still eludes the country. There remains a big
disparity between what the law prescribes and what happens in practice. Violation of
all categories of rights continues, characterized by political high-handedness, which
has resulted in the suppression of voices of political dissent. Court decisions are
largely disrespected by the executive, which has also on several occasions blatantly
assaulted the independence of the judiciary.
There is a need for concerted civic action to prevail over the state to uphold the
Constitution in order to realize constitutionalism in the country. As the judiciary
struggles to uphold the Constitution, its struggles need to be bulwarked by civic
engagement and increased pressure for political accountability. Realizing this
requires, among other things, the promotion of participatory democracy, most
particularly at the local government level.
96
97
Criminal Revisional Cause No. msk 00 cr cv 0013 of 1999.
Civil Suit No 004 of 2011.
24
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